Botha v Police - [2016] NZHC 248

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-393 [2016] NZHC 248

BETWEEN
LOUIS BOTHA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 22 February 2016

Appearances:

S C Blake for Appellant
P R B Winiata for Respondent

Judgment:

23 February 2016

JUDGMENT OF M PETERS J

This judgment was delivered by Justice M Peters on 23 February 2016 at 4.30 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date: ...................................

Solicitors: Kayes Fletcher Walker Ltd, Crown Solicitor, Manukau

Counsel: S C Blake, Auckland

BOTHA v POLICE [2016] NZHC 248 [23 February 2016]

[1] The Appellant appeals against conviction for driving with excess breath alcohol.1 The conviction followed a Judge-alone trial before Judge Henwood in the District Court at Manukau.2

Approach on appeal

[2] The Appellant has a general right of appeal against conviction. To succeed the Appellant must persuade the Court that there has been an error or irregularity or occurrence affecting the trial that has created a real risk that the outcome of the trial was affected or that has resulted in a trial that was unfair.3

[3] The sole ground of appeal is that the Judge erred in concluding that there had been “reasonable compliance” with s 69(1)(d) of the Land Transport Act 1998 (“LTA”). “Reasonable compliance” is a reference to s 64(2) LTA.

Facts

[4] At approximately 4 pm on 6 June 2015, a member of the public notified the Police by telephone that he was following “a potential drunk driver”, that is the Appellant. The person subsequently telephoned to say the driver was parked at Liquorland in Howick.

[5] Constable Spraggs and a colleague were on patrol. They arrived at Liquorland at approximately 4.20 pm, having been forewarned that they might be dealing with a “drunk driver”. The constable’s evidence was that the Appellant had red, blood-shot eyes and that his breath smelt of alcohol. The Appellant admitted to consuming one can of beer.

[6] Constable Spraggs proposed to require the Appellant to undergo a breath screening test without delay, as he had power to do pursuant to s 68 LTA. A search
revealed, however, that there was no breath screening device in the Police vehicle.

1      Land Transport Act 1998, ss 11(a) and 56(1).
2      Police v Botha [2015] NZDC 21693.
3      Criminal Procedure Act 2011, ss 229(1) and 232.

[7] Constable Spraggs then required the Appellant to accompany him to the Ormiston Police Station, a 15 to 20 minute drive away, to undergo an evidential breath test. The Ormiston Police Station was the nearest open station at the time. The Appellant complied, the test was administered, the Appellant’s breath alcohol level was measured at 658 micrograms of alcohol per litre of breath (“mcg/l”), and there is no suggestion that there was any flaw or omission in carrying out the required procedures.

[8] It is common ground however that, in requiring the Appellant to accompany him, Constable Spraggs was not in strict compliance with the governing provision, being s 69(1)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Botha v Police

Details

AGLC: Botha v Police [2016] NZHC 248
Case: [2016] NZHC 248
Decision Date: 23 February 2016

CaseChat Overview and Summary

In the case of Botha v Police, the appellant, Louis Botha, appealed against his conviction for driving with excess breath alcohol. The conviction arose from a judge-alone trial in the District Court at Manukau. The primary issue for the High Court to decide was whether the judge had erred in concluding that there had been reasonable compliance with section 69(1)(d) of the Land Transport Act 1998. The appellant argued that the police officers had not strictly complied with the statutory requirement to have a breath screening device readily available before requiring him to undergo an evidential breath test. The High Court assessed the appeal against the backdrop of the legal principles governing reasonable compliance as outlined in section 64(2) of the LTA. The Court acknowledged that while the police officers had not strictly complied with the statutory requirements, the omission did not create a reasonable doubt about the result of the evidential breath test, nor did it pose a risk of injustice or unfairness to the appellant. The Court held that the judge had not erred in finding that there was reasonable compliance with the applicable provisions and dismissed the appeal. The conviction for driving with excess breath alcohol was upheld.

Orders